17.
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The question arises whether legislation by Order
in Council made under the Prerogative power would be
effective. It would be more difficult to attack in the
courts, because one range of problems would disappear,
ie whether the Ordinance was for the peace, order and good
government of the Colony.
18.
Nevertheless, there remains the crucial question:
does the Prerogative power of Her Majesty extend to enable
legislation on a land matter affecting what is legally
post-1997 China? I do not think it does at the present time.
Jurisdiction can arise by usage or sufferance.
19.
If post-1997 there is made an Order in Council in relation
to New Territories land, it is very unlikely that the courts
would be prepared to consider whether Her Majesty had the
necessary jurisdiction. But usage and sufferance cannot
arise before the event.
20.
When Her Majesty claims jurisdiction to legislate,
the courts will not generally interfere. They will rely
on the Crown to keep within the limits which the Crown
possesses.
21.
In Nyali Ltd v Attorney-General (1956) 1 QB 1
at 33, Lord Parker stated:
#1
• •
•
it is, I think, clear that these courts
will not consider the limits of the juris -
diction granted by treaty or otherwise to
Her Majesty. Such limits may be extended
by sufferance and usage and the courts will
and must assume that the legislative or
other acts in question are within the
jurisdiction granted".
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